A tough case out of New York’s Second Department yesterday shines a light on a tough subject: If lawyers believe they are legally right on an issue, does that mean they should elect to die on that hill?

This one deals with a quirky New York law that forces all potential litigants against a municipality to file a Notice of Claim within 90 days of an incident. In other words, the Legislature demands people run, not walk, to lawyers well before they may know the seriousness of their injuries.

The municipalities then get to take a deposition right away, though we don’t technically call it that since there’s no litigation yet afoot. It’s a 50-h hearing, so-named after General Municipal Law § 50-h, which births it into being, purportedly so that municipalities can investigate with a view toward early settlement, though that rarely happens. Basically, the munis get two bites out of the injured apple, because they get to question a claimant all over again after suit is brought and the injured are now called plaintiffs.

The problem? Few rules truly exist as to the extent of these hearings. And the claimant must go, for the penalty of not allowing oneself to be questioned is kissing your potential lawsuit goodbye.

So in Colon v. Martin, the lawyers represent two claimants, driver and passenger in a car thats rear-ended by a NYC-owned vehicle. Thus, the need for the Notice of Claim, of which the lawyers elected to file one for each client.

But come hearing time — and the hearings are scheduled to follow one after the other — the claimants’ lawyer insists that both clients are allowed in the room while the other testifies. The City, however, refuses to take the testimony unless the other claimant is sequestered outside the room. Eventually, after the lawyers put all their lawyer-talking on the record, the claimants and their counsel leave.

When suit is filed, the now-plaintiffs allege they they appeared and were available to be questioned, that the City refused to take their testimony, and that the hearings were therefore constructively waived.

On motion by the City for summary judgment, the trial court chucks the case into the trash can for failing to abide by the law for giving that 50-h testimony. And on appeal, the Second Department affirms by 3-2. While this means they may appeal this final result as of right to the Court of Appeals, there’s the obvious problem that they could lose.

But they shouldn’t. The Court of Appeals should reverse and reinstate the suit. And that’s for the simple reason that the statute that birthed these hearings gives no clear directive, one way or the other, as to whether a municipality can close the door to the hearing room.

There’s nothing in the statute that says a co-claimant can’t be there, or the press, or anyone else. While the statute gives some guidance as to who can be there, there is no exclusion rule.

The majority claimed that the bare bones statute should be interpreted to allow sequestration due to the “human nature” issue of one person tailoring testimony to that of the other.

The problem with that argument is that the Court is saying what they think the law should be, and not what it actually is.

The 50-h hearings are in derogation of the common law right to bring suit, and the law is clear that when a statute is in derogation of the common law that it must be “strictly construed.” You don’t get to add new parameters because of a poorly drafted statute. And since there’s no sequestration authorized by the statute, the claimants were lawfully correct to stand their ground. Here are the magic words of the statute, which envisions two parts, oral questions and a physical exam:

which examination shall be upon oral questions unless the parties otherwise stipulate and may include a physical examination of the claimant by a duly qualified physician. If the party to be examined desires, he or she is entitled to have such examination in the presence of his or her own personal physician and such relative or other person as he or she may elect….

…In any examination required pursuant to the provisions of this section the claimant shall have the right to be represented by counsel. 

So the statute says who can be there, particularly for the physical exam part, but it doesn’t say who can’t be there, particularly for the oral questions part. Since the statute must be strictly construed, a court can’t simply add a non-existing sequestration part for the oral exam because, perhaps, the poorly drafted statute might imply it for the physical exam part.

Now you may have noticed that I wrote “lawfully correct” above, notwithstanding that they are on the losing side of the fight right now.

This begs the question I asked at the start: Is this a hill to die on?

While I believe the claimants are correct, that doesn’t make it wise to walk out that hearing and potentially face years of unnecessary litigation that might follow, thereby delaying justice for the clients.

While it may be strategically advantageous to have both claimants in the room for some cases, that doesn’t appear to be the case here.

In this matter, the lawyers elected to represent both driver and passenger in a motor vehicle collision. Usually, that’s one big fat no-no, due to the potential conflict of interest if the host driver was even a teensy weensy bit negligent.

Since this is a fairly well known rule of the personal injury bar, and the potential is losing representation of both clients if a court finds a conflict, I will assume for these purposes that the collision was a matter of clear liability and that they two clients were advised of this issue and agreed in writing to the joint representation. (I assume this because otherwise the lawyer has yet more problems.)

But if there was clear liability, then the issues/concerns about having your other client in the room to hear what was said are pretty much moot. Assuming the clients told the lawyer the same thing – Wammo, hit from behind — there shouldn’t really be an issue.

The lawyers were legally right, in my opinion, to take their position, but strategically wrong. Their best case scenario now is that it cost their clients years of litigation and lots of time and money on the appeals. Their worst case is for the clients to walk away empty-handed and, potentially, sue the lawyers for malpractice if the Court of Appeals upholds the Second Department.

In the meantime, the Legislature would do well to clear up the ambiguity that surround these 50-h hearings, and make clear that questioning may not extend beyond that which would occur in an actual deposition. The ambiguity that exists leaves potential litigants at the mercy of unscrupulous examinees who may feel entitled to ask any old questions they want, no matter how much of a fishing expedition they may be, with the claimants being without easy recourse.

Since the time to file suit is just a year and 90 days from the date of the collision, the window of time within which a legal argument can take place in court over the extent of questioning is exceptionally narrow making judicial relief, at times, impossible or impracticable to obtain.